[2] The case holding that where Gap corporation's act constitutes "an act of trading with a consumer by informing that false facts are prohibited under Article 21 (1) 1 of the Act on the Consumer Protection in Electronic Commerce, Etc., in case where Gap corporation's act constitutes "an act of trading with a consumer" where the Fair Trade Commission made an order for correction and publication on the grounds that Gap corporation's act of selling oil for overseas travel goods sold through a cyber-mall by notifying consumers of higher price than the actual amount

[2] In a case where Gap corporation, which is an online travel agent, issued a corrective order and an order for disclosure to Gap corporation on the ground that "an act of notifying consumers of false facts" prohibited under Article 21 (1) 1 of the Act on the Consumer Protection in Electronic Commerce, Etc. (hereinafter "Electronic Commerce Act"), by making transactions with consumers by informing consumers of the amount of oil rates and air stacks (TAX) for overseas travel goods sold through the cyber-mall, the case holding that Gap corporation's act constitutes "an act of trading with consumers by informing consumers of false facts" as prohibited under Article 21 (1) 1 of the Act on the Consumer Protection in Electronic Commerce, Etc., the case holding that Gap corporation's act constituted "an act of trading with consumers by informing consumers of false facts" was most cases where the estimated amount of oil rates and air stacks indicated on the cyber-mall tour guide page was higher than that determined by oil or exchange rate fluctuations after full consideration of the following facts:

2. The costs of lawsuit shall be borne by the Plaintiff.

A. The plaintiff's status

(1) The Plaintiff is an online travel agent who provides information on the sale of travel goods through cyber-malls and sells travel goods upon consumer’s order, and falls under a mail order distributor as defined in Article 2 subparag. 3 of the Act on the Consumer Protection in Electronic Commerce, Etc. (hereinafter “Electronic Commerce Act”).

(b) pricing for overseas travel goods;

1) Aviation charges included in the price of overseas travel goods are generally subdivided into: ① basic fares, ② fuel surcharge which is the amount additionally imposed by airlines to compensate for losses caused by increase in oil prices, ③ other domestic and overseas airport facility usage charges, war insurance premiums, tourism promotion fund, etc., and aviation stack (TAX) which includes the sum of air surcharges to be applied in the following month. Aviation carriers shall indicate and announce in US dollars the fuel surcharge for each air route applicable in the following month at the 16th day of each month, and claim for fuel surcharge for each air shall be filed with the consumer at the amount converted into Korean won by applying the exchange rate as of the base date of each ticket. Aviation stack also differs depending on the base exchange rate applied. Travel agents may verify fuel surcharge determined by airlines through a computer air reservation system, aviation stack, remaining seat, etc.

2) Article 45(2) through (5) of the Enforcement Decree of the Aviation Act (amended by Presidential Decree No. 25455, Jul. 14, 2014) provides that an air transport business entity and travel business entity shall provide information on the total amount of air fares, etc., including fuel surcharge and airport facility usage fee, to air transport users, including all the amount of air fares to be paid by air transport users, should be reflected in the total amount of the travel goods price, and the online travel business entities, including the Plaintiff, etc., have provided that most of the basic fares are included in the travel goods price, and the oil surcharge and aviation stack have been announced and claimed as a separate item on the grounds of the possibility of oil

C. The defendant's disposition

On December 19, 2013, the Defendant issued a corrective order and an order for publication (hereinafter “instant disposition”) in attached Table 1 list to the Plaintiff on the grounds that the Plaintiff, as prohibited by Article 21(1)1 of the Electronic Commerce Act, “an act of notifying consumers of false facts” was “an act of trading with the consumers” as follows.

The Plaintiff, contained in the main text, was informed of the total amount of 1,720 items among seven overseas travel goods (hereinafter “instant travel goods”), such as Guambac, cocks, injuries, detail, Austria, Haac, Hong Kong, etc. (hereinafter “instant travel goods”), which start from June 1, 2013 to July 31, 2013, sold through his cyber-mall (www.onlinet.co.kr) operated by the Plaintiff, and traded the amount of fuel surcharge and aviation stack by informing consumers of the amount of at least 10,00 won higher than they should pay to the airline, and then, the Plaintiff traded the amount of fuel surcharge and aviation stack at a price actually higher than that they should pay to the airline (hereinafter “instant act”).

[Ground of recognition] Unsatisfy, Gap evidence Nos. 1 and 2, the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

Considering the following circumstances, the Plaintiff cannot be deemed to have known the consumer of “false fact” or traded with the consumer. Even if not, there is a justifiable reason that the Plaintiff could not be caused by the Plaintiff’s instant act.

1) Due to the characteristics of the air freight system, consumers have not yet been confirmed at the time when they purchase travel goods, so the amount of oil premium and air stack to be applied to the relevant goods has no choice but to make a transaction by providing information as an expected amount of self-calculated.

2) The Plaintiff notified the consumers of the estimated amount of self-calculated as above, together with the fact that the oil premium and the aviation premium may be changed later.

3) The Plaintiff’s guidance on the fuel surcharge and the estimated amount of aviation stack calculated by itself cannot be deemed as a means to induce or harshly mislead consumers or to establish a transaction.

B. Determination

1) In light of the legislative purpose of the Electronic Commerce Act and Article 21(1)1 of the Electronic Commerce Act to protect the rights and interests of consumers and to contribute to the sound development of the national economy by prescribing matters concerning the fair trade of goods and services by means of electronic commerce transaction, mail order, etc., and the legislative purpose of the said Act to contribute to the protection of consumers’ rights and interests and the enhancement of market confidence, and the fact that “an act of inducing consumers” and “an act of hindering cancellation of order or cancellation of contract” and “an act of hindering termination of contract, etc.,” etc., it can be interpreted that all or part of the facts prohibited under Article 21(1)1 of the Electronic Commerce Act, which may affect the purchase of goods and services, mean any act that is likely to impede fair trade, such as trading with contents disadvantageous to consumers by misleading or omitting them, in light of the duty of good faith.

On the other hand, sanctions against violations of administrative laws are sanctions against the objective fact of violation of administrative laws in order to achieve administrative purposes. As such, it is unreasonable to expect the violator to perform his/her duties, and there is no justifiable reason to believe that the failure to perform his/her duties is not attributable to the breach, and thus, it may be imposed without intention or negligence (see, e.g., Supreme Court Decision 2010Du24371, Jun. 28, 2012).

2) In full view of the following circumstances revealed by the evidence adopted earlier, Gap evidence Nos. 3, 4, and Eul evidence Nos. 1 through 4 and the purport of the entire pleadings, the Plaintiff’s instant act constitutes “an act of making a transaction with consumers by informing of false facts” prohibited under the Electronic Commerce Act, and it is difficult to deem that there exist special grounds to justify the Plaintiff’s instant act. Accordingly, all of the Plaintiff’s assertion cannot be accepted.

① The Plaintiff’s fuel surcharge and aviation stack estimated amount of the instant travel goods indicated on the cyber mall’s guide screen were most cases higher than the amount determined by the price or exchange rate fluctuation. However, in such a case, the Plaintiff did not have known that the said amount would either be refunded to or be refunded to the consumers. For instance, on July 11, 2013, the Plaintiff sold a cyber mall’s guide product, the Plaintiff paid the said amount by displaying the fuel surcharge and aviation stack at KRW 140,00,000 on the screen of the cyber mall’s guide product, but in fact, the fuel surcharge and aviation stack paid to the airline was less than 111,200 won. However, there was no difference between the two amounts, which the Plaintiff did not refund to the consumer, and the said difference remains as the Plaintiff’s profit. As such, the Plaintiff’s act of not having the Plaintiff paid to the Plaintiff part of the purchase price of the said goods under the name of the Plaintiff, which could not be considered to have been adversely affected by the Plaintiff’s purchase of the said product.

② It is recognized that the Plaintiff indicated the cyber-mall guide on the cyber-mall guide page for the instant travel product that “the oil premium and aviation room may change from time to time according to the pay and exchange rate,” or that “the additional charge may occur at the time of a change in the price and exchange rate in accordance with the foreign travel standard terms and conditions.” However, the above guide simply indicates only the possibility of a change in the price or the additional charge, and it is difficult to view that the above guide merely indicates that the amount that the Plaintiff paid to the general consumer with ordinary care is set at will by the travel company and can be higher than the actual amount of the fuel surcharge and the aviation room. Therefore, it is difficult to see that the difference can be refunded later.

③ The Plaintiff asserted that the instant disposition did not constitute a ground for the instant disposition, because the instant act merely provided information on the amount of oil and the estimated amount of air stacks, which differs from the actual amount, due to the interval between the consumer’s purchase of travel goods and the airline’s oil surcharge and the determination of the amount of air stacks, and thus, it cannot be deemed that there was no ground for the instant disposition. However, the instant disposition is not the act of guiding the price that differs from the actual amount due to the foregoing circumstances, but it was traded without notifying the possibility that the difference may occur and the fact that the expected amount would be refunded to the consumers. Accordingly, the Plaintiff’s above assertion on a different premise is without merit.

In addition, the Plaintiff asserts that the instant disposition ground is not recognized since the Plaintiff’s guiding act of oil surcharges and aviation stacks did not serve as a means to induce, harshly mislead, or to establish a transaction. However, there is no ground to interpret the provision of “act of trading with consumers by notifying false facts” under Article 21(1)1 of the Electronic Commerce Act to mean that there is causation between “act of notifying false facts” and “establishment of transaction” (see Supreme Court Decision 2012Du1525, Jun. 26, 2014) and “act of trading” (see Supreme Court Decision 2012Du1525, Jun. 26, 2014). The prohibition of the foregoing provision, like the instant act, is reasonable to interpret that the act of trading with consumers is included in the act of notifying consumers of false facts and allowing consumers to know matters affecting the contents of the transaction, as in the instant case, and it is not required between the establishment of false notification and the transaction, but merely required between the terms unfavorable to the Plaintiff.

④ Since 200, the Plaintiff was able to collect information that is difficult to access as a consumer with respect to the trend of determining the fuel surcharge of an airline in the course of its operation, and even in this case, it appears that the Plaintiff calculated the fuel surcharge and the scheduled amount of air stack based on the information collected. On the other hand, even after the purchase of the travel product in this case, it is not easy for ordinary consumers to confirm the fuel surcharge, etc. applied to the relevant flight. In light of the legislative purpose of the Electronic Commerce Act as seen earlier, in light of the above, the Plaintiff, who is in superior position with respect to the price-related information, can clearly and appropriately indicate that there is a possibility that the difference between the amount of the oil surcharge and the estimated amount of air stack determined by himself may occur, and furthermore, if the difference actually occurred, it is difficult to accept the Plaintiff’s allegation that the Plaintiff did not inform the consumer of the possibility of refunding the oil surcharge and the possibility of refunding it, and that there is no reason for the Plaintiff’s act of giving any guidance or notification.

⑤ Some of the travel goods of this case asserted to the effect that the Plaintiff was able to pay fuel surcharge and aviation stack estimated amount to the Plaintiff’s actual payment to the airline or less than that of the Plaintiff, and that there was a case where the difference in the amount was less than 10,000 won. However, due to the difference in the amount, most of the Plaintiff suffered losses on the part of the Plaintiff, while the Plaintiff was able to receive profits on the part of the Plaintiff, the amount was lower than the difference in the Plaintiff’s profits. Meanwhile, the Plaintiff asserted to the effect that “if the fuel surcharge and aviation stack are set higher than the estimated amount, the Plaintiff was able to pay an estimated amount to reduce the risk of loss to the Plaintiff’s customers, as there were many cases where the estimated amount exceeds the actual amount paid to the airline, the Plaintiff held the difference as is, while, if the estimated amount is less than the actual amount paid to the airline, the Plaintiff was notified of the difference in the amount of the Plaintiff’s demand for revocation and refund.

6) During the Defendant’s investigation, the Plaintiff asserted that the portion exceeding the actual amount of oil surcharge, etc. is less than the relevant expenditure cost. The Nonparty’s representative director, the Nonparty, who was submitted to the Defendant, avoided the fee related to oil surcharge, etc. that should be paid by the airlines, and the travelr claimed that only the Plaintiff bears the expense without any benefit from the separate imposition of oil surcharge, etc. by avoiding the fee related to oil surcharge that should be paid by the airlines. Accordingly, the Plaintiff’s incentive is explained to set

7. The grounds for the plaintiff's assertion are not directly related to the disposition of this case, and there is no reason to justify the action of this case, such as that the fees paid by the plaintiff et al. were reduced due to the flight operator's separate display of oil surcharge, or that the flight operator provided information on oil surcharge and the flight surcharge separately from the basic fare.

3. Conclusion

The plaintiff's claim is not accepted as an illegal ground for the disposition of this case. Therefore, the plaintiff's claim is dismissed as it is without merit.

[Attachment 1] Corrective Order and Publication Order: Omitted

[Attachment 2] Publication Bill of Online Plasting Site: Omitted

[Attachment 3] Relevant Statutes: omitted

Judges Yoon Sung-sung(Presiding Judge) (Presiding Judge)

1) “A virtual place of business established to trade goods, etc. using computers, etc. and information and communications facilities” (Article 2 Subparag. 4 of the Electronic Commerce Act).

2) The Defendant issued an order to pay an administrative fine of KRW 5,00,000 to the Plaintiff along with the instant disposition, but the Plaintiff did not dispute the instant case regarding the administrative fine.